Brijesh Kumar - (1.) THIS writ petition has been filed by the tenant against the order of the opposite party No. 2, Judge Small Causes, Lucknow, decreeing the suit against the petitioner under Order VIII Rule 10 CPC for non filing of the written statement. The petitioner had preferred a revision which too was rejected by opposite party No. 1, hence this writ petition impugning the orders of opposite parties Nos. 1 and 2, contained in Annexures 4 and 2, respectively, to the writ petition.
(2.) THE opposite party No. 3 filed a suit for arrears of rent, ejectmer and damages against the petitioner. THE petitioner-defendant, after service of summons, had put in appearance before the trial court on 6-2-1985. On that date, the case was got adjourned on behalf of the petitioner-defendant. THE next date fixed was 2-5-1985 and the defendant was allowed to file his written statement within one month. However, it appears that the written statement was not filed, nor the defendant or anyone on his behalf was present when the case was taken up on 2-5-1985. Consequently the trial court decreed the suit observing : "Called out Plaintiff counsel is present. None is for the defendant despite opportunity. No W. S. filed. It is thus a fit case to be proceeded with u/Or. 8 Rule 10 and I order accordingly. This is a suit for recovery of arrears of rent and ejectment to which no objection in the shape of W.S. has been filed. Hence the case stands proved and the plaintiff entitled to the relief claimed." The learned counsel for the petitioner has raised two contentions. The first contention is that the procedure adopted in Small Causes Courts suit is of summary nature. No date is fixed for filing of written statement or for settlement of issues. The date is fixed for final disposal ; therefore, Order VIII Rule 10 CPC is not applicable. The second contention is that the order was, undisputedly, passed by the trial court in the absence of the defendant. In that event the only course open for the trial court was to proceed under Order IX Rule 6 CPC and not under Order VIII Rule 10 CPC. I have heard the learned counsels for the parties.
(3.) LET us proceed with the first point, namely, about the applicability of Order VIII Rule 10 CPC in proceedings in the court of Judge Small Causes. Order VIII Rule 10 CPC reads as under : "10. Procedure when party fails to present written statement called for by court.- Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment, a decree shall be drawn up." Learned counsel for the petitioner has submitted that in cases tried by the Judge Small Causes Courts, no date for filing of written statement is fixed. It is straightway fixed for final hearing. He has referred to Order V Rule 5 CPC which reads as follows :- "5. Summons to be either to settle issues or for final disposal-The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly : Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit." on the basis of the above provision, it has been submitted that in a suit tried by a Court of Small Causes, it is not necessary for the defendant to file a written statement. The submission, further, is that in a case where the defendant himself opts to file a written statement and seeks time for the same but fails to file it, in such a case Order VIII Rule 10 CPC will not be applicable inasmuch as it will not amount to legal requirement to file a written statement. In support of this contention, reliance has been placed upon a case reported in Union of India v. Bhagwan Dass, AIR 1976 Delhi 96. The defendant in that case had moved an application for some time to file written statement which was allowed and time was also extended thereafter but no written statement was filed. The court resorted to the provisions of Order VIII Rule 10 CPC. It was held that the defendant, at its own, wanted to file written statement, and that it was not required by the court to file the same; therefore, Order VIII Rule 10 CPC would not be applicable. It was further held that in such circumstances it would not amount to admission of facts alleged in the plaint under Order VIII Rule 5 CPC. The court was of the view that according to the provisions contained in Order VIII Rule 10 CPC, there should be 'requirement' of filing a written statement as provided under Order VIII Rule 9 CPC.;